It’s November 9, 2016, and it finally sinks in: A Democrat has again won the presidency. That certainly could be the outcome, and at present I’d say the odds slightly favor it. So my fellow conservatives, if that is what happens, how will you react? Plunge into despair? Lash out at the idiocy of the American people? Give up on politics? Don an armor of forced cheeriness? You ought to be thinking about that now. Those options aren’t so good.
A lot depends, of course, on what we think such an outcome would mean for America. This essay is part of larger attempt to consider whether America is entering late republican times, that is, times characterized by the government being half-constitutional and half-despotic, and in which the primary political question becomes whether its republican government, or its union under such a government, can survive. The previous essays in this series were “Late-Republican Times: A Long-Term View,” “Late-Republic Studies: Three Scenarios for the Short-Term,” and one describing the first scenario, “Marginal Republican Dominance.”
We’re trying to think about a number of key factors for the long-term view, namely a) the new political correctness, b) the character of the Supreme Court, c) the character of the Federal Bureaucracy, d) Executive Legislating, e) prospects for the emergence of Reform Democrats, f) prospects for the strengthening of Economic Leftism, and g) prospects for the emergence of a Liberal-tarian Party, by considering how they might develop in the short term, i.e., the next ten years or so.
There are three possible short-terms scenarios we’re most interested in. We already considered the somewhat hopeful one, Marginal Republican Dominance, and now we have to think about what happens if the Dems keep the White House. They could do so in two distinct scenarios:
Divided Government. Dems win White House, perhaps for just one of the next two terms. The House of Representatives remains GOP, the Senate ties or becomes barely Dem.
Legitimacy-Lacking Democratic Rule. HRC or an Unknown Democrat (“UD”) decisively win. House stays GOP despite big losses, but Senate is decisively lost. Polls increasingly point to another such Dem victory in 2020. Given liberals’ psychology, and their control over key bureaucratic and cultural institutions, this victory will be used as a mandate to Rule. That rule will be Obama-like in that it will refuse to acknowledge the actually fairly marginal character of Democratic popularity, and it will find ways to operate without the House.
So what’s likely to happen in the Divided Government scenario?
1) Liberals expand present power over the Supreme Court. Of the 4 originalism-friendly justices, one is likely to have to retire for health reasons in the next six years, and more than one in the next ten. The pro-SSM decision will likely come this year, but if it hasn’t, the newer, 6–3 non-originalist Court delivers. Citizens United is toast. Perhaps also Hobby Lobby. Lots of little disasters.
2) The New Political Correctness remains in the saddle. It is perhaps more loony and theatrical in this scenario than in the Democratic Rule one, since it would be a way for leftist crusading instincts to still be doing something when the usual legislative way is blocked, just as at present. That’s bad news for higher ed. Beyond higher ed, the sorts of infringements upon religious liberty, and particularly as connected to the further judicial developments from a court-mandated right to SSM, will increase.
3) Obamacare limps along. King v. Burwell is not enough to kill it. Other problems emerge.
4) The debt and deficit grow. And grow.
5) Increased illegal immigration. Electoral impact of Obama’s amnestied millions less stark than many conservatives fear, but the push for their voting rights becomes a significant part of Democratic platform, and if achieved becomes a significant plus factor in elections.
6) The many bad apples in the bureaucracy remain in place, and more come to join them. The overall power of the bureaucracy grows.
7) Executive legislating continues — no single action as huge as Obama’s amnesty, but the pattern of lots of little actions is really worse, since it will seem to permanently legitimate the practice. The character of HRC or the Unknown Dem could be a countervailing factor, but since she or he will not be able to pass much in Congress without serious compromise, the temptation likely proves irresistible.
8) Continuation of present foreign-policy drift, albeit less neutral towards Islamism and generally weakness-conveying. If no “wild cards” come up, this might continue to allow U.S. to do little about the Middle-East, and about Russia. (And I am for playing it as cool as we can with Putin, BTW.) ISIS terrorist attacks within America or Europe probably have to take more than 100 lives for a Democratic president to take us to real war against them. And such a war would have to be fought with one of the lowest levels of trust ever existing between two American parties. You can perhaps see why some American conservatives are in a weird emotional sense “hoping for” a 1930s-grade foreign policy disaster. It’s not in the cards anyone should count upon, a least for the short term.
9) The incentive for the emergence of Reform Democrats is not large, as it is in the MRD (Marginal Republican Dominance) scenario, but neither is it absent. Growing disgust at the Obama-era standard of Democrat Party behavior will still push some Dems in this direction.
10) Incentive for economic leftism upticks. Although this is somewhat tied to the economic and inequality trends, the incentive also comes from political-dynamics reasons. Overall, this greater economic leftism within the Democratic party overshadows, and perhaps shapes, any movement to Reform the Democrats.
11) Incentive for race-card provocations slightly lower than under MRD. Only slightly.
12) Due to factors 4), 6), and 10), the incentives for the emergence of a liberal-tarian third party significantly diminish.
In many ways, this era of Divided Government would feel a lot like a continuation of the post-2010 Obama-era, if in a more polite and adult mode. But factors 4) and 6) would seriously undermine the nation’s economy, and 1) and 7) the nation’s constitutional order.
Once we get to a 6–3 or 7–2 non-originalist Supreme Court, it could become a real peril to the long-term survival of our constitutionalism. It is true that a case can be made that under the sway of a certain type of judicial liberalism, living constitutionalism would have “gone about as fer as it could go,” once justices had struck down a number of key originalism-leaning decisions, and consolidated a few overall trends. It would have delivered all that Justice Brennan envisioned for it in terms of negative rights for individual liberty, would (illogically) not extend these to shocking things like polygamy, and it would not seek to deliver the positive economic rights, ones like those of FDR’s imagined Second Bill of Rights. Moreover, there really are theorists trying to win acceptance of a more restrained living constitutionalist theory of interpretation.
Still, one would be a fool to put much stock in liberal jurists’ ability to restrain themselves once put decisively in command. If we get Democratic presidential victories in 2016, 2020, and 2024, or even just in 2016 and 2024, the assumption will spread throughout the judicial and law-school ranks that originalism’s challenge is over, and that the real contest has shifted to one between various kinds of judicial progressives. For some, this will be the sign to begin importing Rawls-esque democratic theory into the Constitution, and for others, the sign to simply act as if the Court was some sort of Super-Senate, capable of delivering most sorts of policy goodies.
Executive legislating could become a greater danger than a decisively liberal Supreme Court. And, it would be further enabled by it. Consider a scenario where Republicans do not regain the presidency until 2024, and do so in a divided government situation. For some eleven years, Democrats would have been delivering various domestic policy victories via executive “legislation.” How could the Republican president refrain from doing the same? And not just in acts that cancel what the Democrat president had done? Grant that this back-and-forth occurs over time, and it becomes plausible to think it could lead to a situation in which “the Congress of 2050 will largely serve to ratify decisions the president made unilaterally,” as liberal Vox-man Dylan Matthews recently put it, in an article I discussed here.
On the Supreme Court and executive legislating, to some degree I’m pushing forward to describe the more frightening long-term implications, which are more certainly derivable from the third short-term scenario, that of Democratic Rule. So I should repeat that initially, the scenario of Divided Government will seem like the last several years. And, a better-than-expected Democratic president could set a tone that eased conservative fears substantially, and dramatically so if this were coupled with a renunciation of executive legislating.
However, such good feelings could only accomplish so much. Even in such a case, the bottom line would still be deepening rot, polarization, and systemic dysfunction, amid a diminishing sense of the Constitution’s authority. A moderate-in-tone Democratic president moderate in one or two areas but not prodding his or her fellow Dems towards a Reform Democrat creed, would be essentially be what some conservatives initially feared Obama might be, a faux-moderate whose disguise was convincing enough to fool most Americans. Considering the list of key long-term factors above, 5 of the 7–namely, a), b), c), e), and f)–would still be heading in a negative direction even if the Democratic president were to most unexpectedly refrain from executive legislating.
So, all things considered, with the many uncertainties granted, we have to conclude that unless a revival of conservative prospects were seen to be approaching on the middle-term horizon, the Divided Government scenario would bring America into late-republican times.